High court looks at prisoners' right to DNA test

U.S. Supreme Court to hear case Monday

Posted: Sunday, March 01, 2009

By MARY PEMBERTON

Osborne's attorneys will argue before the U.S. Supreme Court on Monday that DNA testing is not something states can choose to allow when they have doubts about a conviction, but a constitutional right.

They note that 232 prisoners around the country have been exonerated by such tests, and that Alaska is the only state that hasn't even tried to use the ever-evolving technology to see if it might have gotten a conviction wrong.

"Most prosecutors, judges and states recognize that while DNA testing in these crimes may not always protect a conviction, it protects our system of justice by revealing the truth," said Peter Neufeld, co-director of The Innocence Project. "Alaska is the exception."

Neufeld's group, which works to exonerate those who are wrongfully convicted, argues that the U.S. Constitution guarantees Osborne access to the DNA test when it says no state shall "deprive any person of life, liberty, or property, without due process of law."

The state of Alaska argues that Osborne got a fair, error-free trial, and that he is trying to use nothing more than a claim of innocence to reopen a case in which there is ample evidence of his guilt.

Osborne, 36, was convicted of raping and trying to murder a woman in 1993. She identified him as one of her two attackers, he was incriminated by the other man and Osborne confessed in a detailed written statement in 2004.

Ken Rosenstein, the state's lead lawyer for the case, said Osborne chose not to use options available to him if he had wanted to argue his innocence, including asking the governor for clemency.

"Osborne is not a very likely candidate for maintaining an innocent claim because he has confessed to his crime and he won't declare his innocence under oath. There is otherwise no other reason to doubt the validity of his convictions," he said.

Prosecutors point to Osborne's own words.

"Instead of declaring his actual innocence, he has confessed, in graphic detail, to the precise crimes with which he was charged and convicted," the state's court brief says.

DNA testing was conducted for Osborne's trial, but it was crude by today's standards: He could have been the source of semen found in a condom, but so could have roughly 15 percent of all blacks. Prosecutors repeatedly told the jury that Osborne's semen was found in the condom.

The state's expert considered conducting a second type of test that could have narrowed the results but determined the DNA sample was too degraded.

At trial, Osborne asked that his attorney attempt to have the more precise DNA test conducted but she refused, telling him that the outcome of the DNA test that was done actually supported their case of mistaken identity, while another test might hurt it.

Osborne later argued unsuccessfully in Alaska courts that his lawyer had been ineffective because she failed to ask for the more discriminating DNA test.

Alaska courts determined that Osborne could not satisfy the requirements for postconviction testing, in part finding that his lawyer made a reasoned decision about the DNA test.

Last year, the 9th U.S. Circuit Court of Appeals ruled in Osborne's favor, finding it was unconstitutional to deny him access to the test.

Alaska seeks to reverse that federal ruling. The state say that if the ruling is allowed to stand, "then any state or federal prisoner would gain a federal constitutional right to reopen his case merely by asserting that new forensic-science technologies might establish his innocence."

That, they say, threatens the ability of the states "to process postconviction challenges in an orderly fashion."

Osborne was paroled in 2007 after spending 14 years in prison for the attack. He was re-arrested six months later for an Anchorage home invasion and currently is in jail awaiting a 15-year sentence, which could be reduced if the semen was found not to be his.

Keith Findley, who is co-director of the Wisconsin Innocence Project and has worked on the Osborne case, said that if the Supreme Court sides with Osborne, it is unlikely there would be a flood of requests for DNA testing.

Findley said it is ludicrous for the state to say they don't want to do the test because they already know the outcome.